[Congressional Bills 112th Congress]
[From the U.S. Government Publishing Office]
[H.R. 654 Introduced in House (IH)]

112th CONGRESS
  1st Session
                                H. R. 654

    To direct the Federal Trade Commission to prescribe regulations 
 regarding the collection and use of information obtained by tracking 
    the Internet activity of an individual, and for other purposes.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                           February 11, 2011

   Ms. Speier (for herself, Mr. Hastings of Florida, and Mr. Filner) 
 introduced the following bill; which was referred to the Committee on 
                          Energy and Commerce

_______________________________________________________________________

                                 A BILL


 
    To direct the Federal Trade Commission to prescribe regulations 
 regarding the collection and use of information obtained by tracking 
    the Internet activity of an individual, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Do Not Track Me Online Act''.

SEC. 2. DEFINITIONS.

    In this Act:
            (1) Commission.--The term ``Commission'' means the Federal 
        Trade Commission.
            (2) Covered entity.--The term ``covered entity'' means a 
        person engaged in interstate commerce that collects or stores 
        online data containing covered information. Such term does not 
        include--
                    (A) the Federal Government or any instrumentality 
                of the Federal Government, nor the government of any 
                State or political subdivision of a State; or
                    (B) any person that can demonstrate that such 
                person--
                            (i) stores covered information from or 
                        about fewer than 15,000 individuals;
                            (ii) collects covered information from or 
                        about fewer than 10,000 individuals during any 
                        12-month period;
                            (iii) does not collect or store sensitive 
                        information; and
                            (iv) does not use covered information to 
                        study, monitor, or analyze the behavior of 
                        individuals as the person's primary business.
            (3) Covered information.--
                    (A) In general.--The term ``covered information'' 
                means, with respect to an individual, any of the 
                following that is transmitted online:
                            (i) The online activity of the individual, 
                        including--
                                    (I) the web sites and content from 
                                such web sites accessed;
                                    (II) the date and hour of online 
                                access;
                                    (III) the computer and geolocation 
                                from which online information was 
                                accessed; and
                                    (IV) the means by which online 
                                information was accessed, such as a 
                                device, browser, or application.
                            (ii) Any unique or substantially unique 
                        identifier, such as a customer number or 
                        Internet protocol address.
                            (iii) Personal information such as--
                                    (I) the name;
                                    (II) a postal address or other 
                                location;
                                    (III) an email address or other 
                                user name;
                                    (IV) a telephone or fax number;
                                    (V) a government-issued 
                                identification number, such as a tax 
                                identification number, a passport 
                                number, or a driver's license number; 
                                or
                                    (VI) a financial account number, or 
                                credit card or debit card number, or 
                                any required security code, access 
                                code, or password that is necessary to 
                                permit access to an individual's 
                                financial account.
                    (B) Exclusion.--Such term shall not include--
                            (i) the title, business address, business 
                        email address, business telephone number, or 
                        business fax number associated with an 
                        individual's status as an employee of an 
                        organization, or an individual's name when 
                        collected, stored, used, or disclosed in 
                        connection with such employment status; or
                            (ii) any information collected from or 
                        about an employee by an employer, prospective 
                        employer, or former employer that directly 
                        relates to the employee-employer relationship.
            (4) Sensitive information.--
                    (A) Definition.--The term ``sensitive information'' 
                means--
                            (i) any information that is associated with 
                        covered information of an individual and 
                        relates directly to that individual's--
                                    (I) medical history, physical or 
                                mental health, or the provision of 
                                health care to the individual;
                                    (II) race or ethnicity;
                                    (III) religious beliefs and 
                                affiliation;
                                    (IV) sexual orientation or sexual 
                                behavior;
                                    (V) income, assets, liabilities, or 
                                financial records, and other financial 
                                information associated with a financial 
                                account, including balances and other 
                                financial information, except when 
                                financial account information is 
                                provided by the individual and is used 
                                only to process an authorized credit or 
                                debit to the account; or
                                    (VI) precise geolocation 
                                information and any information about 
                                the individual's activities and 
                                relationships associated with such 
                                geolocation; or
                            (ii) an individual's--
                                    (I) unique biometric data, 
                                including a fingerprint or retina scan; 
                                or
                                    (II) Social Security number.
                    (B) Modified definition by rulemaking.--The 
                Commission may, by regulations promulgated under 
                section 553 of title 5, United States Code, modify the 
                scope or application of the definition of ``sensitive 
                information'' for purposes of this Act. In promulgating 
                such regulations, the Commission shall consider--
                            (i) the purposes of the collection of the 
                        information and the context of the use of the 
                        information;
                            (ii) how easily the information can be used 
                        to identify a specific individual;
                            (iii) the nature and extent of authorized 
                        access to the information;
                            (iv) an individual's reasonable 
                        expectations under the circumstances; and
                            (v) adverse effects that may be experienced 
                        by an individual if the information is 
                        disclosed to an unauthorized person.

SEC. 3. REGULATIONS REQUIRING ``DO-NOT-TRACK'' MECHANISM.

    (a) FTC Rulemaking.--Not later than 18 months after the date of 
enactment of this Act, the Commission shall promulgate regulations 
under section 553 of title 5, United States Code, that establish 
standards for the required use of an online opt-out mechanism to allow 
a consumer to effectively and easily prohibit the collection or use of 
any covered information and to require a covered entity to respect the 
choice of such consumer to opt-out of such collection or use. 
Regulations prescribed pursuant to this subsection shall be treated as 
regulations defining unfair and deceptive acts or practices affecting 
commerce prescribed under section 18(a)(1)(B) of the Federal Trade 
Commission Act (15 U.S.C. 57a(a)(1)(B)).
    (b) Requirements To Be Included in Regulations.--The regulations 
prescribed under subsection (a)--
            (1) shall include a requirement for a covered entity to 
        disclose, in a manner that is easily accessible to a consumer, 
        information on the collection of information practices of such 
        entity, how such entity uses or discloses such information, and 
        the names of the persons to whom such entity would disclose 
        such information; and
            (2) shall prohibit the collection or use of covered 
        information by a covered entity for which a consumer has opted-
        out of such collection or use, unless the consumer changes 
        their opt-out preference to allow the collection or use of such 
        information.
    (c) Additional Regulatory Authority.--The regulations prescribed 
under subsection (a)--
            (1) may include a requirement that a covered entity provide 
        a consumer with a means to access the covered information of 
        such consumer and the data retention and security policies of 
        the covered entity in a format that is clear and easy to 
        understand; and
            (2) may include a requirement that some or all of the 
        regulations apply with regard to the collection and use of 
        covered information, regardless of the source.
    (d) Exemptive Authority.--The Commission may exempt from some or 
all of the regulations required by this section certain commonly 
accepted commercial practices, including the following:
            (1) Providing, operating, or improving a product or service 
        used, requested, or authorized by an individual, including the 
        ongoing provision of customer service and support.
            (2) Analyzing data related to use of the product or service 
        for purposes of improving the products, services, or 
        operations.
            (3) Basic business functions such as accounting, inventory 
        and supply chain management, quality assurance, and internal 
        auditing.
            (4) Protecting or defending rights or property, including 
        intellectual property, against actual or potential security 
        threats, fraud, theft, unauthorized transactions, or other 
        illegal activities.
            (5) Preventing imminent danger to the personal safety of an 
        individual or group of individuals.
            (6) Complying with a Federal, State, or local law, rule, or 
        other applicable legal requirement, including disclosures 
        pursuant to a court order, subpoena, summons, or other properly 
        executed compulsory process.
            (7) Any other category of operational use specified by the 
        Commission by regulation that is consistent with the purposes 
        of this Act.

SEC. 4. ADDITIONAL FTC AUTHORITY.

    In implementing and enforcing the regulations prescribed under 
section 3, the Commission shall--
            (1) have the authority to prescribe such regulations as may 
        be necessary to carry out the purposes of this Act in 
        accordance with section 553 of title 5, United States Code;
            (2) monitor for risks to consumers in the provision of 
        products and services, including the development of new 
        hardware or software designed to limit, restrict, or circumvent 
        the ability of a consumer to control the collection and use of 
        the covered information of such consumer, as set forth in the 
        regulations prescribed under section 3;
            (3) perform random audits of covered entities, including 
        Internet browsing for investigative purposes, to ensure 
        compliance with the regulations issued under section 3;
            (4) assess consumers' understanding of the risks posed by 
        the tracking of a consumer's Internet activity and the 
        collection and use of covered information relating to a 
        consumer; and
            (5) make available to the public at least 1 report of 
        significant findings of the monitoring required by this section 
        in each calendar year after the date on which final regulations 
        are issued pursuant to section 3(a).

SEC. 5. ENFORCEMENT BY STATE ATTORNEYS GENERAL.

    (a) Civil Action.--In any case in which the Attorney General of a 
State, or an official or agency of a State, has reason to believe that 
an interest of the residents of that State has been or is threatened or 
adversely affected by any person who violates the regulations 
prescribed under section 3, the attorney general, official, or agency 
of the State, as parens patriae, may bring a civil action on behalf of 
the residents of the State in an appropriate district court of the 
United States--
            (1) to enjoin further violation of the regulations 
        prescribed under section 3 by the defendant;
            (2) to compel compliance with the regulations prescribed 
        under section 3; or
            (3) to obtain civil penalties for violations of the 
        regulations prescribed under section 3 in the amount determined 
        under subsection (b).
    (b) Civil Penalties.--
            (1) Calculation.--For purposes of calculating the civil 
        penalties that may be obtained under subsection (a)(3), the 
        amount determined under this paragraph is the amount calculated 
        by multiplying the number of days that a covered entity is not 
        in compliance with the regulations prescribed under section 3 
        by an amount not to exceed $11,000.
            (2) Adjustment for inflation.--Beginning on the date that 
        the Consumer Price Index for All Urban Consumers is first 
        published by the Bureau of Labor Statistics that is after 1 
        year after the date of enactment of this Act, and each year 
        thereafter, the amount specified in paragraph (1) shall be 
        increased by the percentage increase in the Consumer Price 
        Index published on that date from the Consumer Price Index 
        published the previous year.
            (3) Maximum total liability.--Notwithstanding the number of 
        actions which may be brought against a person under this 
        section the maximum civil penalty for which any person may be 
        liable under this section shall not exceed $5,000,000 for any 
        related series of violations of the regulations prescribed 
        under section 3.
    (c) Intervention by the FTC.--
            (1) Notice and intervention.--The State shall provide prior 
        written notice of any action under subsection (a) to the 
        Commission and provide the Commission with a copy of its 
        complaint, except in any case in which such prior notice is not 
        feasible, in which case the State shall serve such notice 
        immediately upon instituting such action. The Commission shall 
        have the right--
                    (A) to intervene in the action;
                    (B) upon so intervening, to be heard on all matters 
                arising therein; and
                    (C) to file petitions of appeal.
            (2) Limitation on state action while federal action is 
        pending.--If the Commission has instituted a civil action for 
        violation of the regulations prescribed under section 3, no 
        attorney general of a State, or official, or agency of a State, 
        may bring an action under this section during the pendency of 
        that action against any defendant named in the complaint of the 
        Commission for any violation of the regulations issued under 
        this Act alleged in the complaint.

SEC. 6. EFFECT ON OTHER LAWS.

    (a) Other Authority of Federal Trade Commission.--Nothing in this 
Act shall be construed to limit or affect in any way the Commission's 
authority to bring enforcement actions or take any other measure under 
the Federal Trade Commission Act (15 U.S.C. 41 et seq.) or any other 
provision of law.
    (b) State Law.--The regulations prescribed under section 3 shall 
not annul, alter, affect, or exempt any person subject to the 
provisions of such regulations from complying with the law of any State 
except to the extent that such law is inconsistent with any provision 
of such regulations, and then only to the extent of the inconsistency. 
For purposes of this subsection, a State statute, regulation, order, or 
interpretation is not inconsistent with the provisions of the 
regulations prescribed under section 3 if the protection such statute, 
regulation, order, or interpretation affords any person is greater than 
the protection provided under the regulations prescribed under section 
3.
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